Ullrich, Hanns --- "Patent Pools – Policy and Problems" [2008] ELECD 248; in Drexl, Josef (ed), "Research Handbook on Intellectual Property and Competition Law" (Edward Elgar Publishing, 2008)

Book Title: Research Handbook on Intellectual Property and Competition Law

Editor(s): Drexl, Josef

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420475

Section: Chapter 6

Section Title: Patent Pools – Policy and Problems

Author(s): Ullrich, Hanns

Number of pages: 23

Extract:

6 Patent pools ­ policy and problems
Hanns Ullrich



1 Introduction
Contractual arrangements between two or more holders of a certain stock of
patents for the joint exploitation of their exclusive rights vis-à-vis third parties
are commonly referred to as patent pools. These may take various forms in
accordance with the purpose of the pooling. Generally a distinction is made
between arrangements involving centralization of the exploitation, on the one
hand, by transfer of control to a joint venture or even an independent enter-
prise acting as an agent or on its own behalf and, on the other, by way of
bundling individually held patents for licensing by one of the partners.1 While
these differences are not totally irrelevant to an antitrust analysis, given that
the form chosen may reflect the competitive strategy the pooling arrangement
is to serve,2 its economically and analytically characteristic feature is that the
exploitation of industrial property rights3 relating to the technology of two or
more enterprises is made the subject of an agreement on the building of a joint


1 Recent legal literature on the organization of pools is scarce; antitrust
literature tends to use a narrow definition by requiring central control over exploitation
by either transfer of property or exclusive licensing to a central unit, and thus foregoes
one of the essential criteria of antitrust legality, which is free parallel licensing by
the partners; see Stumpf, Herbert and M. Groß (2005), Der Lizenzvertrag, Frankfurt
am Main: Recht und Wirtschaft, 8th ed., ...